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Aaron Fitt of Baseball America wrote an excellent article this week that really delves into the issue of the impracticality of the NCAA's "no agent" rule in the sport of baseball (Secret Agent Deals: NCAA Has Rules on Agents, But They're Rarely Enforced, subscription only). In a 2005 law review article, I discussed how baseball is unique from football and basketball because amateur players in baseball have NCAA eligibility remaining before and after the draft. Essentially, baseball players have to be concerned about being disciplined for retaining an agent, whereas football and basketball players don't. I proposed that the NCAA make an exception for baseball allowing players to be represented by an agent so as to put them on par with amateur football and basketball players, but with established guidelines that clearly define the nature of the player-agent relationship and the rights and obligations of the player and agent (regarding agent fees, services to be performed, rights of termination, etc.) pursuant to a standard form representation agreement similar to the NFLPA's standard rep. agreement. Fitt highlighted my article and my proposal. It's nice to see this issue getting some attention now, and Andy Oliver's lawsuit against the NCAA is the impetus for it.

In his article, Fitt discussed the "industry norm" of players being represented by agents and he interviewed scouting directors, college coaches and agents, all of whom confirmed it:

"Every single player that we deal with—I don't care what round you're talking about—has representation, has an agent," said an American League scouting director. "It's been that way for the last four or five years, and I'm talking even about kids drafted in the 28th round. It's a prerequisite now. These agents are barraging us with telephone calls before we even select a player. I can't even tell you how early agents try to call us and sell us on a player. It starts way before the draft. Those aren't calls that I initiate, but I'm not going to hang up on the guy. The problem is I guess the NCAA's problem, and it's wide and far and deep, but it's not an issue for us, it really isn't....The college coaches know these guys are represented. You'd think the NCAA would get more involved if they care, because we're playing a charade here if we think these players are representing themselves, and it's just family advisers after they get drafted. That's kind of a joke."

"The kids need advice, that's precisely why they pick up an adviser," said Vanderbilt coach Tim Corbin, president of the American Baseball Coaches Association. "At the same time there's a rule against (agents representing players) and it's basically ignored by everyone. People will get away with whatever they can get away with. If there's no standards or guidelines or it's not followed up on, people are going to take advantage. If you're going to have a rule like that, you need to have some stick-toitiveness. At the college level, I don't think administrators understand this part of college baseball, the recruiting part of it, where there is this type of activity going on. I just don't think people know enough about it."

Fitt astutely notes: "If the NCAA is going to get serious about enforcement, it needs to start by coming to grips with the simple reality that agents are omnipresent in college baseball in the 21st century. Then it needs to either actively work to change that reality (a daunting and unrealistic goal), or else rethink its rules against the industry norm."

From my perspective, I just never understood the NCAA's position that drawing a line between a permissible "advisor" and impermissible "agent" is essential to preserving the line between amateurism and professionalism. Why is it that a discussion between the agent and club about the prospect of signing a contract (impermissible) is so materially different than a discussion between the agent and player about the prospect of signing a contract (permissible)? The agent-advisor distinction simply has no bearing on being, or even becoming, a professional. In other words, a player's prospect of signing a professional contract is determined by the draft, not by whether the player has an adviser or an agent or no adviser or agent. So what we are really talking about here is how much money the player is eventually going to sign for, which is where the value of an agent or adviser does come into play. Surely, the NCAA can't be concerned with how much money the player is going to get!

Fitt notes that even college coaches, like Louisiana State's Paul Mainieri—a former president of the ABCA himself—see plenty of sense in my proposal. "To be honest with you—and people in the NCAA may be angry with me for saying this—but I don't really see the problem with a representative talking to a team about a player," Mainieri said. "I would much rather my player not be distracted while he's playing the season. How would an organization determine the signability of my player if he doesn't have a chance to talk to him? So if you've got 30 different organizations trying to talk to my player and we're trying to win a regional or super-regional or whatever, it's very difficult for a player to concentrate on baseball."

But Andy Oliver got in trouble not because he had an advisor, but rather because he (1) had the advisor present at one of the few times the advisor is specifically not permitted to be present. (That he fired the advisor as well changed the incentives, but it seems more likely that the team with which he negotiated and then declined to sign instigated the investigation than that the advisor did.)

A football or basketball player who declares for the draft, as you note, loses his eligibility. He does so after a "discovery process" in which he is fairly certain of his value in that year's draft, and has the option to revoke that option if he perceives that the situation has changed not in his favor.

Only when he is fairly certain does he officially hire an agent (since, as with baseball, hiring an agent eliminates the option to retain eligibility).

We can presume that his information about his likely gain from the draft comes to him as manna from Heaven, but we would likely be wrong.

Andy Oliver had an advisor who gave him information (his likely status) and advice (don't take $400K; you'll likely get more next year). Certainly, there are basketball and football equivalents.

The moment that person attended discussions with a specific team, he became an agent for the player: he was presented as a public face of the player to the team. And Andy Oliver, and Andy Oliver's former representative-now-agent, and the team involved all knew—or should have known—that the relationship had been changed by the RnA's explicit presence there.

If I write you a note that I believe you're worth more than $400K because of x, y, and z, I am advising you. If I go with you to your boss and say "You need to pay Rick more than $400K to keep him because of x, y, and z," I am acting in a professional capacity for you.

The whole structure is ridiculous. And the distinction Ken points out (above) is semantics. So college athletes can have "advisors" but not "agents." And they can have agents as long as the agent doesn't go to the actual meeting. He can be in the next room, but not in the room with the team.

And the whole "advisor" thing has led to huge loopholes. Now, runners and financial advisors affiliated with agents recruit and "advise" players (and even help them pick agents) and this is ok.

Ken, I disagree with you that baskeball and football players are in essentially the same situation.

I agree with you that it is a very clear line; there is no ambiguity with the NCAA's rule. But your argument that there is a material difference between an agent and an adviser, in terms of the amateurism/professionalism line, is not convincing to me. You are merely stating the distinction between an adviser and an agent that the NCAA has made via the "no agent" rule (which I get), but you have not explained WHY having an agent as opposed to an adviser means that a player has suddenly become a "professional". By having an agent, the player isn't signing a professional contract, he's not working out with a professional club and he's not receiving any compensation from any club.

Anon,

I'm using the ordinary (dictionary) meaning of the term discriminate, and I think it is the best choice of words. I don't know what would make you think that I'm implying that the government is involved or that there is state action by using that term.

Prof. Karcher, as I am sure you are aware, there are many who feel that the NCAA is a state actor even though courts have held it is not (yet). By using the word "discriminate," you imply (whether you realize it or not) government action and or/violation of state or federal law, etc., in the context of a law-related blog. I just wanted to know if you were implying state action or, if as you say, you were simply meaning that the NCAA bylaws are "unfair" to baseball players (which they are). While it is splitting hairs, the use of the word "discriminate" means a lot more in this context than in its ordinary meaning which I sure hope you can appreciate.

There is no implication in my post whatsoever that the NCAA is a state actor or that there is governmental involvement or a constitutional issue, etc. And discriminate doesn't necessarily mean "unfair". It means to treat one group differently than another, or that one group is affected different than another. I used that term in the title of my post because the no agent rule treats and affects baseball players differently than basketball and football players.